Eggshell Victims, Private Precautions, and the Societal Benefits of Shifting Crime

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same crime , as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims-those who are harmed more by crime-tend to take more precautions. The implication is that private crime fighting efforts that displace crime-universally criticized in the literature-may be more socially useful than previously acknowledged. The Article concludes by discussing how this insight impacts the ongoing debates over the regulation of precaution-taking

Enforcing State Law in Congress’s Shadow

Congress imposes a variety of sanctions on individuals who have been convicted of state crimes. This Article argues that these sanctions may distort the enforcement of state law. By raising the stakes involved in state cases, the federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions make it more costly to enforce state laws. Second, due to resource constraints or dislike of the federal sanctions, states may attempt to circumvent the sanctions by manipulating charging decisions. In the process, however, states may have to reduce their own sanctions as well, thereby undermining deterrence and the fair application of both state and federal law. The Article theorizes that the severity of the sanctions and the emphasis they place upon state outcomes, among other factors, determine how much the sanctions will distort state proceedings. The Article then substantiates the theory with five in-depth case studies of federal sanctions. It suggests ways to ameliorate the concerns raised herein. It concludes by demonstrating that the analytical framework can be applied more broadly to sanctions imposed and determinations made by any two separate parties

The Populist Safeguards of Federalism

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on Congress do not portend the demise of states' rights. One reason is that the demand for federalization (assuming it even exists) may be ineffectual. Due to the heterogeneity of citizens' policy preferences and the antimajoritarian structure of federal lawmaking, proponents of national legislation may be unable to garner the votes needed to pass congressional legislation that trumps state prerogatives. The second more fundamental reason is that citizens may be inclined to limit federal authority rather than to expand it. The theory identifies several reasons, overlooked in the scholarly literature, why citizens may oppose congressional efforts to expand federal authority vis-a-vis the states, even when Congress could enact a policy that most citizens would prefer on the merits. First, citizens may fear that congressional action on one issue (however desirable) may pave the way for unwelcome federal action on related issues in the future. Second, citizens may prefer to have state, rather than federal, officials administer policies, not only because they trust state officials more, but also because they can keep state officials on a shorter leash. Third, citizens may value political processes, and not just the outputs of those processes; they may be willing to sacrifice desired policy outcomes at the federal level out of respect for direct democracy and federalism. The Article closes by discussing some implications of the theory for ongoing debates over the judicial review of federalism

Eggshell Victims, Private Precaustions, and the Societal Benefits of Shifting Crime

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same crime , as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims-those who are harmed more by crime-tend to take more precautions. The implication is that private crime fighting efforts that displace crime-universally criticized in the literature-may be more socially useful than previously acknowledged. The Article concludes by discussing how this insight impacts the ongoing debates over the regulation of precaution-takin

A Critical Appraisal of the Department of Justice\u27s New Approach to Medical Marijuana

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable. It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing - or enabling others to impose - a wide range of civil and private sanctions on medical marijuana users and their suppliers. The problem is the NEP doesn’t repeal the federal ban on marijuana. Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete

Eggshell Victims, Private Precautions, and the Societal Benefits of Shifting Crime

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same crime , as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims-those who are harmed more by crime-tend to take more precautions. The implication is that private crime fighting efforts that displace crime-universally criticized in the literature-may be more socially useful than previously acknowledged. The Article concludes by discussing how this insight impacts the ongoing debates over the regulation of precaution-taking

Preemption Under the Controlled Substances Act

States are conducting increasingly bold experiments with their marijuana laws, but questions linger over their authority to deviate from the federal Controlled Substances Act. The CSA bans marijuana outright, and commentators have assumed that Congress sought to preempt all state laws that might somehow conflict with the CSA. Under the preemption rule now in vogue, state marijuana reforms are preempted if they either require someone to violate the CSA or, more controversially, if they pose an obstacle to Congress’s objective of eradicating marijuana. Seeking to avoid such conflicts, government officials have scuttled a number of important state marijuana reforms. This Article aims to clarify state authority in this realm and to highlight more generally the dangers of embracing broad preemption rules. In particular, it suggests that the amorphous language of obstacle preemption has been used to block three types of state marijuana reforms that Congress either could not or clearly did not want to preempt: (1) laws that merely legalize marijuana-related activities; (2) laws that restrict such activities through novel means, such as licensing requirements for marijuana vendors; and (3) laws that only incidentally promote violations of the CSA, such as laws prohibiting employment discrimination against marijuana users. To avoid these mistakes, the Article proposes that courts and lawmakers employ a narrower and simpler direct conflict rule. Under this rule, state law is preempted only if it requires someone to violate the CSA. The Article shows why this direct conflict rule more closely comports with Congress’s preemptive authority and its preemptive designs. It also suggests that the rule should provide some much-needed clarity on an issue that has befuddled commentators for years